Request for more medical information not discrimination

B.C. worker's return to work delayed by employer's request, but information was necessary to determine accommodation

Request for more medical information not discrimination

The British Columbia Human Rights Tribunal has dismissed a worker’s complaint of discrimination based on disability when his return to work from medical leave was delayed due to a request for further medical information.

Flexiforce is a company in Abottsford, B.C. that manufactures overhead door hardware and vinyl window frames. Most of the jobs at the company involve moderate to heavy manual work, except for the plastics department. As a result, it was normal practice to accommodate any employees with physical restrictions in light duties in the plastics department.

Sukhjinder Tumber worked as a labourer on the afternoon shift in the plastics department. On Nov. 6, 2017, he was off work with a work-related injury. He remained off work until Feb. 20, 2018 when he was scheduled to return to work on a graduated basis. Because Tumber’s regular duties in the plastics department were considered light, the company felt it didn’t need to alter anything to accommodate recommendations from an occupational therapist.

Tumber went on an extended leave shortly thereafter and eventually returned to modified light duties on July 9. However, he was assigned the day shift instead of his regular afternoon shift and he expressed concern that the demands of the work were too strenuous. Unfortunately for Tumber, Flexiforce had hired another worker to work the afternoon shift during Tumber’s absence so it could meet production requirements and it didn’t want to arbitrarily displace a worker in order to place Tumber on the afternoon shift. The company asked for any volunteers to exchange shifts with him, but no-one was willing.

Company needed more information
Tumber had to go off work again on Aug. 29 after suffering a shoulder and back injury. He was off for more than three months, during which time he provided medical notes stating that he was “unable to work for medical reasons.” He advised Flexiforce on Dec. 11 that he was ready to return on light duties six days later. However, the company replied that it couldn’t accommodate a return to work for him with the information it had at the time, as the notes he had provided during his leave had given no indication of his physical restrictions or if he had undergone rehabilitation to help him with his plastics department duties with which he had had difficulty on his previous return to work.

A few days later, Flexiforce requested that Tumber undergo an occupational fitness assessment to determine his accommodation needs. Tumber agreed and submitted to the assessment on Dec. 20, which recommended a gradual return to work on light duties for two weeks followed by moderate duties for another two weeks before an evaluation to determine if he was capable of performing his regular full duties. The assessment also placed restrictions of lifting no more than 10 pounds consistently and up to 50 pounds occasionally while not carrying material at shoulder height or overhead. The restrictions were expected to be temporary until Jan. 30, 2019.

Flexiforce shut down operations over the year-end period and, on Jan. 4, 2019, the company advised Tumber that it couldn’t accommodate him at that time. It said that January and February were normally slow months during which it lays off staff, and it was also concerned about returning him to “the same light duties that have already been shown to exceed your tolerance.”

The company stated that for Tumber to return to work in the plastics department, it would need a medical note confirming his ability to perform regular duties and he would have to select one of three options: a day shift in the plastics department, a day shift in the riveting department or a day or afternoon shift in the bending department. The company noted that the lightest work available was in the plastics department.

Tumber responded that he preferred the plastics department work, but he would like to work two days per week on the afternoon shift in order to accommodate orthodontic appointments for his braces and doctor’s appointments for his parents.

Flexiforce agreed to return him to work in the plastics department on Jan. 21, but it said it couldn’t accommodate the two days per week on the afternoon shift. The company suggested that most employees could book appointments outside of working hours and Tumber should do the same. In the past, the company allowed him to request a shift change for a particular day or make up hours if an appointment couldn’t be booked outside of work hours.

Worker claimed disability, family status discrimination
Tumber filed a human rights complaint alleging discrimination for failing to accommodate his disability by first refusing to return him to work and then refusing to assign him to his pre-injury duties on the afternoon shift, as well as family status discrimination for failing to accommodate his request for two afternoon shifts a week for his parents’ medical appointments. He also provided a doctor’s note recommending a return to work with one week of light duties, one week of moderate duties and regular duties after that.

Flexiforce agreed to accommodate Tumber under the doctor’s recommendations and Tumber returned to work on Jan. 28. The company then filed an application to dismiss the discrimination complaint.

The tribunal found that Tumber had a disability and suffered an adverse impact when he was delayed in returning to work from his medical leave. Because the delay was from Flexiforce’s requirement for further medical information, it was directly related to the disability, said the tribunal.

However, the tribunal noted that the “generally accepted manner of assessing an employee’s fitness for work is by seeking medical information and where, as here, there is a prior issue of fitness for work duties, an assessment.” The tribunal found that Flexiforce acted in good faith when it tried to establish Tumber’s abilities, limitations and accommodation requirements, so the main issue was whether the requirement of information that delayed Tumber’s return was a reasonably necessary to determine accommodation.

The tribunal found that the information Tumber had provided while on leave wasn’t enough to determine his capabilities and limitations. In addition, the Dec. 20, 2018 assessment provided restrictions that were inconsistent with returning to the plastics department right away — the recommendation was for light duties followed by moderate duties before regular duties, but regular duties in the plastics department were already the lightest work available — and Tumber had already indicated those duties were challenging for him.

The tribunal also pointed out that once Tumber provided a medical note confirming his fitness to return on a graduated basis — although after Tumber had filed the discrimination complaint — Flexiforce agreed to bring him back.

As for family status, the tribunal found there was no serious interference with a substantial family duty or obligation. Flexiforce refused to give Tumber two afternoon shifts on an ongoing basis, but it showed a willingness to change his shift on an as-needed basis as long as Tumber tried as much as possible to make appointments outside of work hours.

The tribunal determined that it was likely Flexiforce would be able to establish that its requests for more medical information were justified for the position to which Tumber wanted to return and there was no interference with Tumber’s family obligations. Tumber’s complaint was dismissed.

For more information, see:

  • Tumber v. FlexiForce Canada and another, 2020 BCHRT 132 (B.C. Human Rights Trib.).

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